Howard v. State, A06A2051.
| Decision Date | 05 October 2006 |
| Docket Number | No. A06A2051.,A06A2051. |
| Parties | HOWARD v. The STATE. |
| Court | Georgia Court of Appeals |
Charles H. Frier, Atlanta, for appellant.
Paul L. Howard, Jr., District Attorney, Christopher M. Quinn, Assistant District Attorney, for appellee.
Following a jury trial, Carl Howard appeals his convictions for rape, incest, aggravated sodomy, aggravated sexual battery, and aggravated child molestation (two counts). Howard argues that the trial court erred in (i) denying his special demurrer that focused on the lack of a specific date for the crimes, (ii) admitting expert testimony on child sexual abuse syndrome, (iii) denying his motion for a directed verdict of acquittal on the rape charge, (iv) failing to merge the incest and rape charges and the aggravated sodomy and aggravated child molestation charges, and (v) sentencing Howard for terms outside the statutory maximums. He further asserts he received ineffective assistance of counsel. We agree with Howard that due to the absence of any showing of force, the rape conviction should be reversed and that (as conceded by the State) resentencing is necessary on two of the other convictions to conform to statutory maximums. Howard's other enumerations of error are either waived or without merit.
Construed in favor of the verdict, see Matthiessen v. State,1 the evidence shows that during the last two weeks of February 2003, 24-year-old Howard convinced his 15-year-old half-sister to engage in sexual intercourse with him, to perform oral sex on him, and to allow him to perform oral sex on her. He also inserted his finger into her private part. When his sister later disclosed these events to others, Howard was arrested and charged with rape, incest, aggravated sodomy, aggravated sexual battery, and two counts of aggravated child molestation. A jury found him guilty on all counts. During sentencing, the judge orally merged the aggravated sodomy count into the related aggravated child molestation count and sentenced Howard to 20 years on the rape count and to 25 years on each of the remaining counts (all sentences to be served concurrently). Although otherwise consistent with the oral sentence, the written sentencing order merged the aggravated sodomy count into the rape count rather than into the aggravated child molestation count. Howard appeals.
1. Howard first claims that the trial court erred in denying his special demurrer, in which Howard sought to quash the indictment for failure to identify specific dates for the alleged crimes. The indictment alleged that the sexual misconduct occurred between November 5, 2002 and February 28, 2003. At the hearing on the special demurrer (three months prior to trial), the State presented no evidence but simply told the trial court that it could not give more specific dates, on which statement the court relied in denying the special demurrer. Nevertheless, in the similar transaction hearing that took place that same day immediately following the special demurrer hearing, the State put the victim on the stand, who testified that the sexual misconduct occurred only during the latter half of February 2003.
The indictment here, which failed to allege a specific date on which each of the crimes was committed, was not perfect in form and therefore was subject to a timely special demurrer. Blackmon v. State.2 Although this Court has recognized an exception to this rule where the evidence does not permit the State to identify a single date on which the offense occurred, the exception does not apply unless the State first presents evidence to the trial court showing that it cannot more specifically identify the dates of the offenses. Id. at 854-855, 614 S.E.2d 118. Indeed, on the heels of the special demurrer hearing, the State showed just the opposite, as the victim identified the latter part of February as the time frame during which the offenses occurred. Where the State's own evidence shows that the State reasonably could narrow the range of dates, a special demurrer should be granted. State v. Layman.3
However, we are not reviewing a pre-trial interlocutory appeal of a trial court's denial of a special demurrer; rather, we are reviewing a post-conviction appeal of the trial court's pre-trial ruling, which is subject to a different standard of review. See Blackmon, supra, 272 Ga.App. at 854, 614 S.E.2d 118. In these circumstances, "the standard of review occasioned by the trial court's denial of a special demurrer is harmless error; the question then becomes whether the defense was prejudiced by the incorrect form." City of Peachtree City v. Shaver.4 Specifically, "[t]he relevant inquiry is whether the failure to narrow the range of dates alleged in the indictment materially affected [Howard's] ability to present a defense." (Punctuation omitted.) Holloway v. State.5
As in Holloway, Howard claims that due to the lengthy period set forth in the indictment, he was not able to adequately investigate and prepare a possible alibi defense. But also as in Holloway, Howard has not demonstrated that narrowing the dates in the indictment would have enabled him to present an alibi defense. Id. Moreover, the victim's testimony at the similar transaction hearing three months prior to trial gave Howard clear notice of the February 2003 time frame in which the misconduct allegedly occurred. Where the defendant was aware of the correct information (though misstated in the indictment), the error in the indictment is manifestly harmless. State v. Eubanks.6
2. Howard contends that the trial court erred in admitting testimony about child sexual abuse syndrome, in which an expert testified that a child sexual abuse victim is often "groomed" by the abuser so as to trust the abuser, which makes the child more accommodating and less willing to disclose the sexual abuse to others. Howard objected to this testimony at trial as irrelevant and as placing his character in issue. However, this testimony was relevant here to explain the victim's accommodating Howard and to explain why she waited some time before disclosing the incidents. See McCoy v. State7 (). Accordingly, the testimony was admissible even if it may have incidentally placed Howard's character in issue. See Parrish v. State.8
3. Howard argues that the trial court erred in denying his motion for a directed verdict of acquittal on the rape charge, in that the State presented no evidence of force as required by OCGA § 16-6-1. We agree and reverse the conviction on this charge.
In addressing this matter, we apply the following standard of review:
The standard of review for the denial of a motion for a directed verdict of acquittal is the same as that for reviewing the sufficiency of the evidence to support a conviction. A motion for a directed verdict in a criminal case should only be granted when there is no conflict in the evidence and the evidence demands a verdict of acquittal as a matter of law. Moreover, on appeal the evidence must be viewed in the light most favorable to the verdict, [Howard] no longer enjoys the presumption of innocence, and the appellate court determines the sufficiency, not the weight of the evidence, and does not judge the credibility of the witnesses.
(Emphasis in original.) Matthiessen, supra, 277 Ga.App. at 54, 625 S.E.2d 422. See OCGA § 17-9-1. "[W]here the evidence demands a verdict of acquittal[,] the failure of a trial judge to so direct a verdict is reversible error." Cleveland v. State.9
OCGA § 16-6-1 provides in pertinent part that "[a] person commits the offense of rape when he has carnal knowledge of [a] female forcibly and against her will." Force is a separate element that must be proven to obtain a conviction for forcible rape. State v. Collins.10 "[T]he term `forcibly' means acts of physical force, threats of death or physical bodily harm, or mental coercion, such as intimidation." Id. at 43, 508 S.E.2d 390.
Here, as in Brewer v. State,11 "the victim repeatedly denied every suggestion of physical force, threats, and intimidation." She testified:
Q. Okay. Tell us about the first time you remember you-all having sexual contact. What happened; how did it come about?
A. We were wrestling.
Q. Okay.
A. And then we began to talk, and that's how it started out.
Q. Do you recall what y'all were talking about?
A. We were talking about his previous girlfriends and the things that he do with his girlfriends.
Q. And what type of things was he saying about he did with his previous girlfriends?
A. He was just saying that I — that he knew I wondered what he did with his girlfriends and that if — he could teach me some stuff.
Q. And then what happened?
A. And then he just started talking. We was just — it was more of like a convincing thing to do something.
Q. Convincing, like what? What was he saying?
A. Do you want an example?
Q. I want you to tell me what he said.
A. Oh. Like one thing, he was like, he's like, "I know you wanna do something." I was like, "Well, you're my brother." And he was like, "Well, you can learn from me because I'm your brother than you going out and doing it with somebody else."
. . .
Q. [After some inappropriate touching, w]hat happened next?
A. And then eventually after a lot of talking, then I eventually took my clothes off and did what he wanted me to do.
. . .
Q. Did you want to have sex with him that day?
A. Not really, but I did it anyway.
Q. Why did you do it?
A. Because one part of me was convinced to do it. Another part of me wanted to make my brother happy, and I didn't want to make him mad.
Q. Why didn't you want to make him mad?
A. Because I thought he wasn't gonna talk to me no more and that was gonna affect our relationship. And I was like trying to...
To continue reading
Request your trial
-
Metcalf v. State
...to hold that aggravated child molestation merged into aggravated sodomy.10 Id. at 587-588 (2), 600 S.E.2d 677. In Howard v. State , 281 Ga. App. 797, 637 S.E.2d 448 (2006), we held for the first time that aggravated sodomy merged into aggravated child molestation rather than the other way a......
-
Lewis v. State
...weight of the evidence, and does not judge the credibility of the witnesses. (Citation and emphasis omitted.) Howard v. State, 281 Ga.App. 797, 800(3), 637 S.E.2d 448 (2006). (a) Appellant argues that there was insufficient evidence to convict him of voluntary manslaughter,2 aggravated assa......
-
Blanton v. State
...State v. Layman, 279 Ga. at 340–341, 613 S.E.2d 639;Mosby v. State, 319 Ga.App. at 643(1), 738 S.E.2d 98; see Howard v. State, 281 Ga.App. 797, 798–799(1), 637 S.E.2d 448 (2006) (“Where the State's own evidence shows that the State reasonably could narrow the range of dates, a special demur......
-
Perez v. State
...without violence, but also why a child victim would acquiesce and be reluctant to turn against her abuser.”); Howard v. State, 281 Ga.App. 797, 637 S.E.2d 448, 451 (2006) (admitting evidence of grooming, even if it incidentally places defendant's character in issue, to explain victim's unwi......